Treasury and IRS Propose Welcome (and Some Unwelcome) Guidance on the Base Erosion and Anti-Abuse Tax

Treasury and the IRS have issued proposed regulations filling a number of gaps and providing necessary guidance on the Base Erosion and Anti-Abuse Tax (BEAT). In general, the guidance is reasonably consistent with the statute and legislative history, although there are some elements that cannot be readily inferred from these sources. Among other things, the proposed regulations elucidate certain specific issues regarding base erosion payments, including the services cost method, treatment of cost of goods sold under Section 471 or Section 263A, and netting of payments.

Determining the Aggregate Group

Proposed § 1.59A-2 provides rules for determining if a taxpayer is an applicable taxpayer (the BEAT applies only to a taxpayer that is an applicable taxpayer). Generally, an applicable taxpayer is a corporation that satisfies the gross receipts test and the base erosion percentage test, as described below.

Section 59A and proposed § 1.59A-1 and -2 provide that the taxpayer and certain other corporations that are related to the taxpayer are treated as one person for purposes of determining whether a taxpayer satisfies these tests. Specifically, Section 59A(e)(3) aggregates corporations (“aggregate group”) on the basis of persons treated as a single employer under § 52(a), which treats members of the same controlled group of corporations (as defined in § 1563(a) with certain modifications) as one person. Foreign corporations are generally excluded, except to the extent that the foreign corporation has effectively connected income subject to tax under § 882.

The proposed regulations generally provide that payments between members of the aggregate group are not included in the gross receipts of the aggregate group, consistent with the single entity concept in § 59A(e)(3). Similarly, the proposed regulations generally provide that payments between members of the aggregate group are also not considered for purposes of the numerator or the denominator in the base erosion percentage calculation. Proposed § 1.59A-2(e).

Payments between the aggregate group and any foreign corporation that is not within the aggregate group are considered in applying both the gross receipts test and the base erosion percentage tests. However, payments to a foreign corporation from within the aggregate group that are subject to net income tax in the United States are eliminated and not considered in applying the gross receipts test and the base erosion percentage test. Proposed § 1.59A-2(d).

Gross Receipts Test

Proposed § 1.59A-2(d) provides that a taxpayer satisfies the gross receipts test if the taxpayer, or the aggregate group of which the taxpayer is a member, has $500 million or more of average annual gross receipts during the three prior taxable years. In the case of a foreign corporation, gross receipts include net income that is ECI or income taken into account in determining net taxable income under an applicable U.S. income tax treaty.

The proposed regulations measure gross receipts of a taxpayer by reference to the taxpayer’s aggregate group determined as of the end of the taxable year for which BEAT liability is being computed, including gross receipts of those aggregate group members during the three-year period preceding that taxable year.

Base Erosion Percentage Test

The base erosion percentage test is generally satisfied if the taxpayer (or the taxpayer’s aggregate group) has a base erosion percentage of three percent or more.

The proposed regulations provide that the base erosion percentage for a taxable year is computed by dividing (1) the aggregate amount of base erosion tax benefits (the numerator), by (2) the sum of the aggregate amount of deductions plus certain other base erosion tax benefits (the denominator). In the case of a taxpayer that is a member of an aggregate group, the base erosion percentage is measured by reference to the deductions or certain reductions in gross income of the taxpayer and members of the taxpayer’s aggregate group as of the end of the taxpayer’s taxable year.

Base erosion tax benefits are generally the deductions or reductions in gross income that result from base erosion payments, but excluding deduction allowed under §§ 172, 245A, or 250, amounts paid or accrued to foreign related parties for SCM services, and certain other payments. Generally, these deductions are also excluded from the denominator of the base erosion percentage. The proposed regulations also exclude any § 988 losses from the numerator and the denominator in determining the base erosion percentage.

The numerator of the base erosion percentage only takes into account base erosion tax benefits, which generally are base erosion payments for which a deduction is allowed under the Code for a taxable year. Similarly, the proposed regulations ensure that the denominator of the base erosion percentage only takes into account deductions allowed under the Code by providing that the denominator of the base erosion percentage does not include deductions that are not allowed in determining taxable income for the taxable year.

A base erosion tax benefit is not included in the numerator when the payment was subject to tax under §§ 871 or 881 and that tax has been deducted and withheld under §§ 1441 or 1442. In addition, the proposed regulations provide that for any base erosion payment subject to a reduced rate of withholding tax under an income tax treaty, the associated amount of base erosion tax benefits eliminated from the numerator of the base erosion percentage calculation is determined using rules similar to those in § 163(j)(5)(B) as in effect before the Act.

The base erosion percentage also includes certain premium or other consideration paid to a foreign related party for reinsurance, and amounts paid or accrued by the taxpayer to certain surrogate foreign corporations that result in a reduction in gross receipts to the taxpayer. Section 59A(c)(4)(A)(ii)(II) provides that those base erosion tax benefits that result from reductions in gross income are included in both the numerator and the denominator in the same amount. Other payments that reduce gross income but that are not base erosion payments are not included in the denominator of the base erosion percentage.

Special rules apply fordetermining the amount of base erosion tax benefits in the case of transactions that are marked to market and for taxpayers in aggregate groups with different taxable year ends.

Base erosion payments

Central to the application of BEAT is the “base erosion payment.” For most taxpayers, base erosion payments will consist of (a) amounts paid or accrued to a foreign related party for which a deduction is allowed under the Code and (b) amounts paid or accrued to a foreign related party in connection with the acquisition of depreciable or amortizable property. Certain payments by inverted companies and certain reinsurance payments will also be base erosion payments.

Services Cost Method. In welcome guidance, the Proposed Regulations interpret the statutory exception for payments eligible for the services cost method under Section 1.482-9 (the SCM Exception) to include the cost component of payments paid with a markup. Commentators had debated whether the SCM Exception was available for payments that were eligible for SCM, but nonetheless were compensated with a markup under the taxpayer’s transfer pricing. The Proposed Regulations resolve this question favorably by applying the SCM Exception to the extent of total services cost of the payment (excluding the markup). In applying the SCM Exception, taxpayers must maintain adequate books and records to substantiate the cost of the service. Under the SCM Exception, taxpayers should examine service fees charged at cost-plus to determine which ones satisfy the requirements for the SCM Exception.

Treatment of COGS. Other than in the limited case of surrogate foreign corporations subject to Section 59A(d)(4), the Proposed Regulations do not specifically address expenses paid to a foreign related party that are treated as cost of goods sold under Section 471 or Section 263A. Nonetheless, the Preamble recognizes, consistent with longstanding case law, that costs includible in inventory result in reductions of gross income under Section 61, rather than deductions. See, e.g.,Alternative Health Care Advocates et al. v. Commissioner, 151 TC No. 13 (Dec. 21, 2018) (holding that COGS is not subject to disallowance under Section 280E). No BEAT-specific guidance, however, is provided to determining what expenses are included in inventory. For businesses that maintain inventory, proper application of BEAT will depend on review and application of the existing inventory tax accounting rules.

Netting of Payments. Many taxpayers asked for guidance on netting of intercompany payments to and from affiliates. The Proposed Regulations provide that the amount of any base erosion payment is generally determined on a gross, not a net basis, regardless of any contractual right of offset or netting. A limited exception is provided for certain mark-to-market transactions.

Agency and Reimbursement Arrangements. Another area where taxpayers sought guidance was those involving the reimbursement doctrine, agency, beneficial ownership, and assignment of income. No BEAT-specific guidance is provided on these questions. Rather the Preamble directs taxpayers to apply existing common law doctrines to characterize such transactions for purposes of BEAT.

Fenwick Observation. In many cases, the proper application of BEAT will depend on the proper application of common law doctrines and federal income tax accounting principles as to which taxpayers may have previously given little thought. Prior to BEAT, taxpayers may rarely have considered which of their affiliates is primarily responsible for an expense, or whether a global services arrangement is characterized for tax purposes as a principal with a set of subcontractors, or series of joint principals directly earning customer revenue, or as a conduit arrangement. Taxpayers may find it fruitful to explore common law doctrines in characterizing intercompany arrangements for BEAT purposes.

Non-Cash Payments. The Proposed Regulations provide that “payments” to a foreign related party for BEAT purposes include amounts paid in kind, including in the form of cash, stock or assumption of liabilities. Although the Proposed Regulations themselves do not further flesh out this rule, the Preamble states that the definition of payments includes an exchange of property for stock in non-recognition transactions such as subsidiary liquidations, reorganizations and Section 351 transactions. In addition, the Preamble also states that the carryover basis in such a non-recognition transaction involving a “payment” in kind will be subject to BEAT. The Preamble also states that a base erosion payment includes a loss recognized on the transfer of property to a foreign related party—presumably, a “payment” in the form of property for the foreign related party’s cash. However, the Preamble expresses that a Section 301 distribution of property is not considered a “payment.”

Fenwick Observation. This interpretation of “payment” does not square with common understandings of that word, and would seem to cause BEAT to apply to all transactions that bring depreciable or intangible assets into the U.S. without a step-up in basis. Additionally, the definition of payment would greatly complicate international M&A transactions and post-acquisition restructuring. For example, if a U.S. company purchased a foreign target, made a Section 338(g) election, and then “checked the box” to liquidate the target, the newly created basis from the Section 338(g) election would give rise to a base erosion payment. Applicable taxpayers who are subject to BEAT will need to develop a new playbook for foreign acquisitions where some or all of the acquired IP is going to be brought into the U.S.

Effectively Connected Payments. The Proposed Regulations exclude from the definition of a base erosion payment payments made to a foreign payee that includes the payments in effectively connected income (ECI). This exception for ECI only applies where the payee provides a W-8ECI certificate to certify an exception from U.S. withholding tax. Although not entirely clear, the ECI exception apparently does not apply to a non-withholdable payment, such as for the purchase of depreciable or amortizable property, that is ECI to the payee. The ECI exception also does not apply if the payee is exempt from U.S. tax on the payment under an applicable income tax treaty.

Pre-2018 Payments. By the Act, BEAT is made applicable to payments paid or accrued in taxable years beginning after December 31, 2017. The Proposed Regulations confirm that deductions taken into account after 2018 attributable to payments made before 2018 are not subject to BEAT. For example, if a U.S. corporation purchased depreciable property from a foreign affiliate in 2015, depreciation deductions with respect to that purchase in 2018 and later years are not base erosion tax benefits. See the discussion below for an exception that applies in the case of disallowed business interest expense under Section 163(j).

Base Erosion Tax Benefits

Once base erosion payments are identified, the amount of “base erosion tax benefits” can be determined. This amount is important for two reasons. First, the amount of base erosion tax benefits factors directly into the computation of the base erosion percentage. As discussed above, a taxpayer is only subject to BEAT if its base erosion percentage for the year is at least 3 percent. Second, for a taxpayer subject to BEAT, base erosion tax benefits are added back to taxable income to arrive at “modified taxable income,” the income base to which the BEAT tax applies, as discussed below.

Section 59A(c)(2), which the proposed regulations mirror, defines the term “base erosion tax benefit” to include the following four items:

Any deduction allowable with respect to any base erosion payment

Any deduction allowed for depreciation (or amortization in lieu of depreciation) with respect to property acquired with a base erosion payment

In the case of reinsurance premiums or other payments, certain deductions and other reductions in the gross amount subject to tax and

In the case of certain inverted entities, any reduction in gross receipts with respect to an amount paid or accrued to the surrogate foreign corporation or any foreign person that is a member of the same expanded affiliated group

Consistent with the statute, the proposed regulations also provide that a base erosion tax benefit is not taken into account if tax is imposed on the base erosion payment under § 871 or 881, and the tax has been deducted and withheld under § 1441 or 1442. If a treaty reduces the rate of tax under § 871 or 881, the amount of the base erosion tax benefit that is not taken into account is correspondingly reduced (i.e., the amount of the base erosion tax benefit increases).

The proposed regulations provide several examples of the interaction between base erosion tax benefits for interest expense and § 163(j). These examples follow the statutory rule that a disallowed interest expense that carries forward under § 163(j) is first treated as an unrelated party interest expense, and then as a related party interest expense. Correspondingly, an allowed interest expense is first treated as a related party interest expense, and then as an unrelated party interest expense.

Base Erosion Minimum Tax Amount

The additional tax imposed by the BEAT is the “base erosion minimum tax amount” or BEMTA. The BEMTA equals the excess of (1) the applicable BEAT rate (5 percent in 2018, 10 percent for 2019-2025 and 12.5 percent after 2025) multiplied by modified tax income (MTI) over (2) the adjusted regular tax liability.

In determining the adjusted regular tax liability, most credits (including the foreign tax credit) are subtracted from the regular tax liability amount, which has the effect of increasing the BEMTA by disallowing credits, including the foreign tax credit.

Credits for the overpayment of taxes and for taxes withheld at source are not subtracted from the regular tax liability because these credits relate to federal income tax paid for the current or previous year and therefore should not increase the BEMTA.

For taxable years beginning before January 1, 2026, the adjusted regular tax liability is not reduced by the research credit determined under § 41(a) or by a portion of applicable § 38 credits. Before 2026, these special credits do not reduce the adjusted regular tax liability and thus do not increase the BEMTA. However, since foreign tax credits are taken into account before the special credits, the benefit can be limited for taxpayers with excess foreign tax credits.

Modified Taxable Income

Section 59A(c) provides that MTI is taxable income determined without regard to base erosion tax benefits and the base erosion percentage of any NOL deduction. The proposed regulations adopt an “add-back” approach to implement this rule. Base erosion tax benefits and base erosion percentage NOL deduction amounts are added back to taxable income, which increases the BEMTA. The MTI computation is made on a taxpayer-by-taxpayer basis. The aggregate group concept is not relevant here: Only the relevant taxpayer’s base erosion tax benefits and base erosion percentage of NOLs are added back.

If current-year deductions create negative taxable income, then the negative amount is the starting point for computing MTI. When a usable NOL carryover exceeds the positive taxable income, the excess amount of NOL does not reduce taxable income below zero for determining the starting point for computing MTI.

For example, assume $100 of income, current deductions of $150 ($70 of which is a base erosion tax benefit) and a pre-2018 NOL carryforward of $400. The starting point for computing MTI does not take into account the $400 NOL carryforward because the $150 of deductions exceeds the $100 of income. In this example, the MTI is $20 ($100 taxable income less deductions of $150 (negative $50), and add back of the $70 base erosion tax benefit).

If we instead assume the income is $500, the starting point for computing MTI is $0 ($500 of income less $150 deductions less $350 of the $400 NOL deduction). The MTI is $70, ($0 taxable income and add back of $70 base erosion tax benefit).

Fenwick Observation. The Proposed Regulations reject the “recomputation” approach to NOL carryovers that would be preferable to many taxpayers. As a result of treating the starting point of MTI as zero, taxpayers with NOLs may have a BEAT liability well before they would have regular tax liability without regard to any base erosion payments.

The base erosion percentage of NOL is determined in the year the NOL arose, or vintage year, since the vintage year reflects the portion of base eroding payments that are reflected in the NOL carryover. The proposed regulation adopted the vintage year approach over the approach of looking at the year that the NOL arose. The proposed regulations state that the vintage-year approach is preferred because it is a fixed percentage, creating greater certainty as to the amount of the future add-back to MTI. Based on the vintage approach, NOLs that arose in taxable years beginning before 2018 and that are deducted as carryovers, the base erosion percentage is zero and there is no add-back to MTI for the use of those NOL carryovers.

Partnerships

The proposed regulations generally apply an aggregate approach in conjunction with the gross receipts test for evaluating whether a corporation is an applicable taxpayer and in addressing the treatment of payments made by a partnership or received by a partnership for purposes of section 59A.

For example, in determining gross receipts, if a member of an aggregate group owns an interest in a partnership, the group includes its “share” of the gross receipts of the partnership in its gross receipts computation. The aggregate group’s share is proportionate to its distributive share of items of gross income from the partnership.

Further, when determining whether a corporate partner that is an applicable taxpayer has made a base erosion payment, amounts paid or accrued by a partnership are treated as paid by each partner to the extent an item of expense is allocated to the partner under section 704. Thus, for example, a partnership in which an applicable taxpayer is a partner is treated as making a payment to a foreign related party when the partnership makes a payment to the foreign related party.

Similarly, any amounts received by or accrued to a partnership are treated as received by each partner to the extent the item of income or gain is allocated to each partner under section 704. Thus, for example, a taxpayer which pays a domestic partnership that is owned by related foreign partners is treated as paying those foreign related partners directly.

The rules and exceptions for base erosion payments and base erosion tax benefits apply accordingly on an aggregate basis.

The Preamble provides that the proposed regulations do not provide for special treatment of base erosion tax benefits attributable to a partnership or to partnership nonrecognition transactions. Instead, the aggregate principle generally applies to these situations. For example, if a partnership acquires property from a foreign related party of a taxpayer that is a partner in the partnership, deductions for depreciation of the property allocated to the taxpayer generally are base erosion tax benefits. Similarly, if a foreign related party and a taxpayer form a partnership, and the foreign related party contributes depreciable property, deductions for depreciation of the property generally are base erosion tax benefits, in part, because the partnership is treated as acquiring the property in exchange for an interest in the partnership under section 721.

Taxpayers owning a partnership interest with a value of less than $25 million and who have less than a 10 percent interest in the capital and profits of such partnership are excluded from the aggregate approach described above.

Consolidated Group Rules

The proposed regulations provide that for affiliated corporations electing to file a consolidated income tax return, the BEAT tax is determined at the consolidated group level, rather than determined separately for each member of the group.

Items from intercompany transactions are not taken into account for purposes of making the computations under the BEAT rules. For example, any increase in depreciation deductions resulting from intercompany sales of property are disregarded for purposes of determining the taxpayer’s base erosion percentage. Similarly, interest payments on intercompany obligations (as defined in §1.1502-13(g)(2)(ii)) are not taken into account in making the computations under section 59A.

Regarding the coordination of section 163(j) and the BEAT rules, the proposed regulations generally implement the classification approach of proposed §1.59A-3(c)(4) on a consolidated basis to identify which interest deductions are allocable to domestic related party payments, foreign related party payments, and unrelated party payments. Slightly different rules apply to the deduction of current year business interest expense than to the deduction of section 163(j) carryforwards.